31 F. 149 -

31 F1d 149

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Case Text

EWART

CO. 'lJ. BRIDGEPORT MALLEABLE IRON CO.

149

love with him. He immediately declared that he was truly the object of her affection, and that she had' been writing him letters in cherry juice. These manias mayor may not exist to that extent which will disor,der the mind, and which will render a man irresponsible for his crime. Now, Clearly, from the testimony of the physician, this man suffers from a mania upon the subject of wakefulness. He himself testifies that he has not been asleep for eight years. Either he is dishonest in his statement, or is suffering under a mania in regard to that subject. The physician testifies that this is a physical impossibility. Now, does that mania, or other manias, so disorder his mind on other subjects that he is irresponsible as a criminal? If it is simply a mania on the subject of sleeplessness, and if he has intelligence sufficient to .distinguish between right and wrong, particularly between right and wrong on the subject here involved, namely, that of illicit distilling, it would be your duty to convict him. Something has been said about the punishment which, in case of conviction, the defendant would be subjected. With this !,!ubject you have nothing whatever to do. That is a matter entirely for the court, and I am sure you will feel that you can safely trust the court with that duty, in case you should find it your duty to convict. Thequestion which you, by your,oaths and by the.laware to determine', is the question of the guilt or innocence of the accused,and you will frame your verdict under the rules and instructions I'have given you, after your consideration of the evidence. Your verdict will be the usual diet. If you find that the defendant cominitted the offense, and that he is responsible,-that he knows the difference between right and wrong in the matter of illicit distillation,-your verdict will be, "We, the jury, find the defendant guilty." If you find that the prosecution has failed on either of those propositions, your verdict will be, "We, the jury, find the defendant not guilty." Or, if you have a reasonable doubt, your verdict will be, "Not guilty." As you believe, gentlemen, from the evidence, so youWill find. Retire and make up your verdict.

EWART MANUF'G

CO. v.

BRIDGEPOR,T MALLEA;BLE IRON

Co.

(OVrcuit

D. Oonnecticut. May 20, 1887.)

t.

PATENTS FOR INVENTIONS-!MP:ROVED DRIVE-CHAIN.

Letters patent No. 154,(1)4 were issued September 1, 1874, to one Ewart, for an improved drive-chain. Reissued letters were granted April 20, 1875, June 15, 1880, and February 15, 1884. The claim of the original patent was for driving-chain links, notched or reduced at a particuiar place, and constructed with coupling hooks; the object of the invention being the construction of a chain capable of easy detachment, but not liable to casual separation. The specification of the third rE/issue differed from the only in clearness of description; the first claim of said reissue being for 'the combination, in a drive'chain, of the coupling hooks, c, and side-bars sufficiently small, close to the end-bars, to pass through the opening of the hook, c, as shown and de-

150

FEDERAL REPORTER.

scribed.'" In the drawings' of the original and the reissued patents the hook was upon one end of the link, and an integral part thereof. On August 18, 1885,letters patent No. 324,7B4 were granted to one SeIdner, under which de- ' tachable drive·Cihains were made with a hook similar in shape to Ewart's; the with the same. Held, that there was nothlinks, however, not being ing in the Ewart method which required the links to be integral with the . hooks, no difference of function being involved; and the SeIdner patent, therefore, infringed said last reissue.
2.

SAME-CONSTRUCTION OF CLAIM.

The second claim of said last reissue, viz.: "The combination, in the open link, of a drive-chain of the end-bar, b, provided with a coupling hook, and an opposite end of the link adapted to be coupled to tpe hook of a correspondmgly constructed link, to form a chain, substantially as set forth, "-was broader than the original; the means of a notched or reduced portion of the side·bars beiIlg omitted, and the precise character of the coupling not being described.· Held, that it would therefore be construed as limited to links coupled by the means described, in the first claim above mentioned.

SHIPMAN,J. This is a bill in equity to restrain the defendant from the alleged infringement of reissued letters patent No. 10,444, issued February 5, 1884, to William Dana Ewart, assignee to the plaintiff, for an improved drive-chain. The original patent, No. 154.594, was issued September 1, 1874. The first issue was applied for December 15. 1874, and was issued April 20, 1875. The second reissue was issued June 15, 1880. The specification of the third reissue; which differs from the original specification only for the purpose of clearness of description, describes the invention .as .follows: "My invention consists in a drive-chain which is made up of detachable links, for the purpose of readily substituting new links for broken ones, or changing the length of the chain, while, at the same.time, the links are not liaQle to casual detachment, as hereinafter more fully described. The following is a description of my invention: The links, A, are preferably of a rectangular form, longer than they are broad, their side-bars, a, a. being round, or nearly so, and their end-bars, b, b, being constructed as shown in the annexed drawings. The end-bar. b·. is made with a broad hook, c, which is about three-quarters of a circle, and which is adapted to the reception and working within it of the end-oar, b. For the purpose ofconnecting the links, to make a chain of them, and disconnecting them readily, one of the side-bars of each llnk is liJade sufficiently small near the end-bar, b, to pass through the opening of the hook, c." The two claims of the present reissiIe are as follows: "The combination, in a drive-chain, of the coupling hooks, c, and side bal"ll SUfficiently small, close to the end-bars; to pass through the opening of the hook, c, as shown and described. (2) The combination, in the open link of hook, and an oppoa drive-chain, of the end-bar, b, pr,ovided with a site end of the adapted to be coupled to the hook ofa correspondingly con· structed link. to form a chain, substantially as set The single claim of the original patent is as follows: "Driving-chain links, notched or reduced at e. and constructed with coupling hooks, c, substantially as described."

EWART MANUF'G CO. V. BRIDGEPORT MALLEABLE mON CO.

151

The first claim of the first reissue, which was applied for three and one-half months after the original patent was granted, is the same as the first claim of the present reissue. The second claim is as follows:
"(2) The combination, in the open link of a drive-chain, of the end-bar, b, provided with a coupling hook, and the end-bar, b, adapted to be coupled to the hook of a corresponding link, to form a chain, substantially as shown."

The invention, as shown in the original patent, was the combination, in a drive-chain in which the links are connected by hinge-like joints, of coupler hooks having throats too small to permit the passage of the end bar of the link through said opening, with side-bars sufficiently small, at the part close to the end-bars, to pass through said coupler hook throats, whereby the coupled parts of the chain, while capable of easy detachment when turned into an unusual. relative position, are not liable to casual separation. The evidence in regard to the state of the art at the date of Ewart's invention is to the effect that the patentee was the first inventor of a chain hl\ving links and hooks constructed substantially as shown in the patent, so that any ofthe links may be coupled and uncoupled only when the parts to be thus affected are turned into an angle, but are not liable to casual detachment when the chain is in a working condition.1n the drawings of the original and of all the reissued patents the hook is upon one. end of the link, and is an' integral portion thereof. The defendant makes drive-chains, under letters patent No. 324,134, issued August 18, 1885, to Joseph J. SeIdner. The difference between the two devices is that the couplings of the SeIdner chain aredetMhed from the links, and are divided by a central partition into two separate siots, the partition being of the same height as the coupling, and provided with flanges upon its opposite edges. The reduced side-bars slide endwise into the sockets of the couplers, which are received between the sidebars, and are uncoupled, in the same way as in the Ewart patent. The links of the Ewart chain are all integral with its hooks. The links of the SeIdner patent are not integral with its double hooks. The shape of the hooks is the same. The questions in the case are whether the original patent is limited to links having hooks as an integral part thereof, and whether the third reissue is an improper enlargement of the original patent. The defendant introduced in evidence a certified copy of a claim erased from the original Ewart application, which claim is as follows: "Hooks, c, combined with notches, e, and driving-chain links, substantially as and for the purpose described." The file wrapper and its contents were not introduced in evidence. The inference which the defendant desires to draw from the fact that the chain was erased, is that the patentee endeavored to obtain a claim for detached or separate hooks, but was compelled to abandon it, and be content with a more limited statement of his invention, and that therefore he cannot now be permitted to claim that detached hooks are properly included in the reissue. The plaintiff's expert testified orally, without objection, that he was familiar with the history of the original patent, and that the patent-office requested a selection to be , .

152

FEDERAL REPORTER.

the two claims of the application, because they stated precisely the same invention, and were objectionable upon that ground only and not because they stated different inventions. In the absence of any other evidence upon this point, I shall consider that an enlarged claim was not intended to be made and was not abandoned. The first claim of the present reissue describes the same invention which was described in the sole claim of the original patent, and nothing more. Neither the principle of the invention, nor the description of it, nor the claim in the original patent limited it to hooks integral with the links. . That was the Ewart method of construction, but nothing in the patent makes the invention, us claimed and described, to depend upon that constructicm. The difference between the two methods of construction is formal, not involving a difference in function. Reed v. Ohase,26 Fed. Rep. 94. The. part of the invention whi0h is vital is the means by which detachable can be coupled so as not to be liable to casual detachment, andwhich consist in the described construction of hooks ane;] bars, or such a construction as is equivalent thereto. The second claim of the present reissue was intended to be a broader claim thanthe first, and omits mention of the manner in which the end bar of the link is coupled with the hook, viz., by means of the notched or reduced portion of the side-bars, and the precise character of the coupling hooks is not described. It could therefore cover, unless a limited construction should be given it, a drive-chain in which two links were uncoupled. by being turned into an unusual relative position, although the did not contain the notched or reduced portion, e. It closely ,resembles the second claim of the first reissue, which was promptly applied for. In the.. absence of any more knowledge than is furnished in the record of this case, in regard to the reasons which induced the patentee to ask for the second claim of the first reissue, I do not think it wise to treat this claim as void, and to require a disclaimer. The question which is of practicaUmportance in this case is whether the original waf! limited to hooks integral with the links, for, if it was not, it will hardly be contended that the first claim of the present reissue is not infringed. r shall therefore construe the second claim as limited to links coupled with the hooks, c, by the means shown and described in the first claim, or by means equivalent thereto. Let there bea decree for an injunction against the infringement of the claims, as thus construed, and for an accounting.

MEERS V. KELLY.

158

MEERS 'lI. KELLY. «(}hotJ'Uit (Jo'U'Y't,

8. n.· Nt/lC YO'Y'k. May 16, 1887.)

DESIGN PATENT-PHOTOGRAPHIC ALBUM LEAF-PATENTABLE NOVELTY.

A design patent, No. 14,961, was issued April 15, 1884, to Stephen Meers, for a photographic album leaf. It consisted of an exterior plain border or frame. apparently elevated, inclosing a border or frame, with a roughened or pebbled surface. and. within this, pockets apparently raised for the purpose of holding the pictures; thus making three mats or frames. The defendant sold photograph albums with two borders surrounding the pockets, -one border pebbled, the other smooth,-not raised, but even with th,e surface of the sheet. As shown by the evidence, album leaves with pebbled surfaces 'surrounding the openings through which the pictures are seen were old: ,and smooth borc;1ers surrounding pebbled pockets, and pockets with ornamented edges, were also old. Held, that said patent, if limited to the speCific design shown, might' be a design patent; but if construed to include, generally. a plain border mclosing a pebbled border, which inclosed a pocket, it was wanting in patentable novelty, ,and a bill filed against the defendant to restrain infringement m'ust be dismissed.

J. Milton Stearns, Jr., for plaintiff. Andrew J. Todd, for defendant.
SHIPMAN, J. This is a bill in equity to restrain the defendant from the alleged infringement of design patent No. 14,961, issued April 15, 1884, to Meers, for a photographic albuin leaf. Letters patent No. 293,054 were issued February 5, 1884, to the same patentee, for an improvement in photographic albums. The improvement consisted, in part, in dispensing with a large portion of the pasteboard which is ordinarily used inside the leaves of photographic albums, and, in part, in embossing the edges of the openings in the leaves, and thereby making raised pockets for receiving the pictures. The rim of pasteboard upon the edges of the leaf is also raised or elevated above the adjoining surface of the leaf. The specification of the design patent says that the "leaf is ornamented by a frame, A, the surface of which is roughened or pebbled, and which incloses the pocket or pockets, B. The roughened frame, A, is inclosed in a frame,· C. This roughened frame imparts to the leaf an ornamental appearance." The claims are as follows: "(I) The design for a photographic album leaf, consisting of the roughened frame, A, inclosing the pocket or pockets, B, as shown and described. design for a photographic album leaf, consisting of the exterior "(2) frame, C, the roughened frame. A, inside of the frame, C, and the pocket or pockets, B, inside of the roughened frame, A, as shown and described." The frame, A, is a border of grained or roughened snrfaee surrounding, for a certain distance, the pocket 0;- place to hold pictures, and the frame, 0, is a smooth border between A and the edges of the leaf. These borders have the effect of mats or frames for the picture. The drawings of the patent represent the pocket as apparently raised above the surrounding surface, and the border, 0, as raised above the frame, A. The defendant sells albums having leaves ornamented with borders, A and 0, surrounding a pocket, not raised, out even with the surface of